Scott v. Sullivan, 89-1378
| Decision Date | 07 February 1990 |
| Docket Number | No. 89-1378,89-1378 |
| Citation | 898 F.2d 519 |
| Parties | , Unempl.Ins.Rep. CCH 15314A Thomas L. SCOTT, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., * Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John Manning, Wisconsin Rapids, Wis., for plaintiff-appellant.
Michael C. Messer, Dept. of Health and Human Services, Region V, Office of the Gen. Counsel, Chicago, Ill., for defendant-appellee.
Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and PELL, Senior Circuit Judge.
Claimant Thomas L. Scott appeals the district court's affirmance of the Secretary's determination 1 that Scott is not disabled under the Social Security Act and therefore is not entitled to benefits.
When the disability hearing in this case was held in 1987, Scott was forty-one years old, had a general education diploma, and had been employed at Consoweld Corporation (n.k.a. Sterling Engineered Products) since 1967 as a laborer. His job involved substantial lifting, bending, stooping, and carrying of materials usually weighing fifty to sixty pounds but sometimes as much as 100 pounds. Scott injured his back at work on April 28, 1976. During 1977, Scott twice reinjured his back at work, and in early 1980, Scott reinjured his back at home.
On June 11, 1980, Scott underwent a laminectomy. Dr. Beuchel, who had previously treated Scott for his back problems, performed this procedure which involves the excision of a vertebral arch. Scott reported that the surgery was successful in relieving his pain. Scott was advised to refrain from lifting heavy weights and to avoid excessive twisting and bending. Despite the successful surgery and post-operative therapy, Scott's back problems returned within one year. He received treatment for his problems and consulted various doctors and specialists.
In August 1983, Scott again reinjured his back at work. He saw a chiropractor, Dr. Birdwell, who diagnosed a sprained back. On September 18, 1983, Scott returned to work with no restrictions on the amount of weight he could handle. In late 1984, Scott was involved in an automobile accident that aggravated his back condition. In early 1985, Scott returned to Dr. Beuchel for treatment. Dr. Beuchel recommended that Scott be assigned to light duty work and recommended reinstituting restrictions on the amount of weight Scott should handle on the job. Dr. Beuchel also referred Scott to Dr. Szmanda, a neurologist, for further evaluation.
In July 1985, Scott was hospitalized for three days. An EMG and nerve conduction study were undertaken by Dr. Szmanda who concluded that the results were abnormal and evidenced moderate acute denervation in one area and partial denervation in another. His diagnosis was "moderate to severe peripheral nervous system disease with the presence of superimposed corticospinal tract pathology." A myelogram taken in October 1985, however, was negative for disc herniation or nerve root displacement, but did show some disc bulging. A CT scan confirmed these results. In December 1985, Dr. Beuchel approved Scott's return to work with the previous restrictions.
Scott continued to have lower back pain and consulted Drs. Beuchel and Szmanda, among others, about further treatments. The possibility of a second laminectomy and spinal fusion was discussed, but no action was taken. On August 8, 1986, Scott stopped going to work. Scott was hospitalized from August 19 to 20, and Dr. Szmanda conducted several tests. A myelogram again showed that no disc was herniated, but that visible bulging existed. Scott was diagnosed as having "sensorimotor peripheral polyneuropathy and spastic paraparesis."
Dr. Beuchel wrote on August 26, 1986, that Scott had suffered a 20% permanent partial disability of his back and that a second laminectomy and fusion were probably indicated. He further wrote that Scott reported that he was only able to stand four to six hours in an eight hour workday, sit for four hours, ride in a car for up to eight hours, and lift frequently a maximum of twenty pounds.
On September 8, 1986, Scott filed for disability benefits, alleging that his disability began on August 8, 1986 (the last date he worked at Consoweld). On October 8, 1986, Consoweld referred Scott to Dr. Allen for an examination. Dr. Allen concluded that, although Scott could perform all of the activities of daily living, he doubted "[Scott] is ever going to get much better." On November 11, 1986, the Social Security Administration informed Scott that he was denied disability benefits. Scott appealed this initial decision, but it was affirmed on January 6, 1987.
On February 18, 1987, Dr. Beuchel reexamined Scott and reported that his condition had worsened. He wrote that Scott thought that the previous estimates were too high--"[Scott] felt standing should be 1 to 3 hours, sitting about 2 to 3 hours, driving 2 to 3 hours, lifting 10 to 20# ." Dr. Beuchel concluded his letter by stating that Scott "is presently totally disabled as far as Social Security is concerned at this time." On February 20, 1987, Scott requested a hearing on his request for benefits.
A hearing on Scott's case was held on June 1, 1987, before an Administrative Law Judge. 2 At the hearing, Scott and his wife testified, and Scott's attorney entered into evidence numerous medical exhibits. Scott testified that his back constantly gave him pain; he said he occasionally took medication (Flexoril) to relieve the pain, but that he avoided the medication when possible because it made him drowsy. He stated that his activities were limited by the injury, but that he could still help around the house with chores such as carrying the groceries, setting the table, and cutting the lawn with a riding mower. In addition, he testified that he was able to go hunting and fishing occasionally, ride a bike from time to time, and could walk four blocks without back pain.
At end of the hearing, Scott's counsel and the ALJ had the following discussion:
....
... I will leave the file open for 30 days. And if you find out earlier that there is ... a possible need to go for a medical advisory on that, let me know.
After the hearing, Scott's counsel sought to solicit a medical opinion from Dr. Szmanda regarding whether Scott met the requirements of section 1.05c. See 40 C.F.R. pt. 404, subpt. P, app. 1. Counsel enclosed a copy and an explanation of the listing to apply to the case. Dr. Szmanda refused to give his opinion on this issue, however, and referred the attorney to Dr. Beuchel. On August 14, 1987, after several letters from counsel asking for his opinion, Dr. Beuchel responded as follows: "Tom does have evidence of spasm, discomfort, tenderness, a list and pain along with degenerative arthritis of his back with chronic low back pain and intermittent sciatica associated with degenerative disc disease."
Scott's counsel forwarded Dr. Beuchel's letter to the ALJ with the following explanation:
I am submitting to you what I received today from Dr. Beuchel, consisting of one page. It is not what I asked of him, having sent him the appropriate listing of impairments and explanations of those listings to apply in this case. I am afraid that this is the best I can do so please make this part of the record and close the record and make your decision in the case. I am sorry to have delayed it this long but I thought that I could get the additional opinion to make it easy for you.
The ALJ then rendered his decision and held that, although there was no question that Scott suffered from chronic low back pain, he "d[id] not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." The ALJ held that it was clear that Scott was unable to perform his old job, but that he had the "residual functional capacity to perform the full range of light work." Given this capacity and Scott's age, high school diploma equivalency, and work experience, the ALJ concluded that Scott was not disabled for purposes of the Social Security Act.
On appeal, the district court affirmed on the ground that the ALJ's decision was based on substantial evidence.
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